Ronnie Mitchell, Bizzell's attorney, said he will ask the court to dismiss the case.

Dennis Nielsen, owner of Freedom Arms, a newly opened gun store on U.S. 70 Business in Clayton, requested a machine gun permit in May.

Bizzell refused, saying he needed more information, including the type of automatic weapon Nielsen needed a permit for, where and how it would be stored and why Nielsen needed the weapon.

State law requires permits from the county sheriff to own a machine gun and limits possession to banks, merchants and recognized business establishments for protection of the business. Under N.C. law, machine guns are considered weapons of mass death and destruction. Nielsen, a 37-year Air Force veteran who has been operating gun stores since 1992, filed his lawsuit in Nash County, where he lives. He argues that Bizzell is ignoring state law and the Second Amendment to the Constitution by refusing a permit to someone who is allowed to own one under state statutes. Nielsen is representing himself in the case. Nielsen, who was granted a machine gun permit in Nash County, argues Bizzell should not need to ask for the make of the weapon or how it will be stored to grant the permit.

Nielsen responded to the sheriff's first letter explaining he required the machine gun to protect his business, but he would not provide the serial number, the make of the weapon or how it would be stored.

"I said I have adequate storage for all firearms because I didn't want to tell them, because everything you write to them is public record," Nielsen said.

Confusion over laws

Nielsen said his lawsuit calls into question inconsistencies in state law.

The Attorney General's Office would not say whether state law supported Bizzell's request for information. The office noted that its attorneys provide legal interpretation to government officials only.

Nielsen interprets part of the law to mean that municipalities cannot register firearms and therefore cannot legally require the serial number of a weapon to issue a permit for its possession.

"It's unusual for people not to be responsive when we ask for extra information," said Mitchell, Bizzell's attorney. "We just need to make sure we're complying with the statute."

But Nielsen said he feels that if the law were clearer, he and the sheriff wouldn't have to be playing the issue out in court.

"I'm pretty hard on the General Assembly in saying that they're supposed to correct this," Nielsen said. "I, as a citizen, should be able to look at the law and say I know what I have to do."

In an unofficial opinion issued in 1999 and reiterated this year, the Attorney General's Office said that since state statute 14.409 refers to machine guns specifically, it "controls" the other statute, allowing merchants, banks, etc., to continue to own machine guns with a sheriff's permit. The opinion also suggests that "the General Assembly may wish to reexamine the state of the law and enact legislation to clarify its intentions in this area."

Mitchell, on retainer to represent the sheriff's office, said he does not believe Bizzell has granted a single machine gun permit in the last year. But if someone complies with the law, there would be no reason not to, the attorney said.

"I don't want to say he would never deny it, because there may be circumstances where individuals may not necessarily be fit to possess certain kinds of weapons," Mitchell said. "In most instances, the sheriff is going to grant it. Sheriffs are rightly very conscious of making sure they've complied with the law."

Legality of selling unclear

Nielsen said he is concerned also that state law does not mention whether those with permits can sell machine guns.

The statute says it is unlawful for any person to "manufacture, assemble, possess, store, transport, sell, offer to sell," etc., "any weapon of mass death and destruction." Importers, manufacturers and dealers are exempt from the law.

According to the unofficial opinion from the Attorney General's Office, the permitting law, which does not mention selling machine guns, overrides the other.

Nielsen said the state should simply say whether it supports people owning and selling machine guns. "I don't care which way they go," he said. "It's just if somebody else is going to do it, I want to do it."

On the blog ncgunowners.com, Nielsen's marketing assistant, writing under the name "FreedomArmsGirl," wrote in an Oct. 16 post that by refusing the machine gun permit, Bizzell was trying to shut down Nielsen's Clayton business.

"He is not trying to shut down the business," Nielsen said. "But he is trying to shut down a part of my business."

Bizzell responded that he supports gun owners and gun stores and would be supportive of every homeowner having a weapon for self-protection.

"I have no desire to shut down any law-abiding business," Bizzell said. "As sheriff, I am pro-gun."

Nielsen said he would ultimately like to sell machine guns from his store.